NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 09-1747
___________
GOVERNMENT OF THE VIRGIN ISLANDS
v.
STACEY AMBROSE,
Petitioner
______________________________________
On Writ of Certiorari from the Supreme Court
of the Virgin Islands
(S. Ct. No. 2007-00041)
_______________________________________
Argued: December 15, 2010
Before: McKEE, Chief Judge, FUENTES and
SMITH, Circuit Judges
(Opinion filed: July 21, 2011)
PAMELA LYNN COLON, ESQ. (Argued)
Law Office of Pamela Lynn Colon, Esq.
27 & 28 King Cross Street, 1st Floor
Christiansted, St. Croix
United States Virgin Islands
Attorney for Petitioner
VINCENT F. FRAZER, ESQ.
Attorney General
ELLIOTT M. DAVIS, ESQ.
Solicitor General
MATTHEW PHELAN, ESQ. (Argued)
Assistant Attorney General
3439 Kronprindsens Gade
1

GERS Complex, 2nd Floor

St. Thomas, United States Virgin Islands
Attorneys for Respondent
OPINION
PER CURIAM
We granted Stacey Ambroses petition for a writ of certiorari to review a decision
of the Supreme Court of the Virgin Islands which reversed his convictions for third
degree assault and unlawful possession of a firearm during the commission of a crime of
violence. The Supreme Court remanded his case to the Superior Court of the Virgin
Islands for a new trial. However, for the reasons that follow, we find that the writ of
certiorari was improvidently granted and we will therefore dismiss the writ for lack of
jurisdiction.
I.
Following a jury trial in the Superior Court, Ambrose was convicted of third
degree assault (Count 1) and unlawful possession of a firearm during the commission of a
crime of violence (Count 2). The trial judge sentenced Ambrose to 5 years imprisonment
on Count 1 and 15 years imprisonment on Count 2, consecutive to Count 1.
Thereafter, Ambrose appealed to the Supreme Court of the Virgin Islands. He
raised four issues: (1) a Sixth Amendment jury unanimity argument; (2) a Sixth
Amendment argument based on the variance between the amended and superseding
amended informations and the verdict; (3) an argument that there was insufficient
evidence to convict him of the weapon possession charge; and (4) a Confrontation Clause
challenge to that same conviction based on the admission of a handgun license report
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prepared by a police officer who did not testify at trial. Ambrose sought a remand to the
Superior Court with instructions to enter judgments of acquittal on Counts 1 and 2.
The Supreme Court reversed the convictions on Counts 1 and 2 and remanded for
a new trial, after finding a lack of juror unanimity. Ambrose v. People of the Virgin
Islands, 2008 WL 5422862 (V.I. Dec. 18, 2008). In doing so, the Court noted that
Ambrose had raised other arguments but concluded that it is not necessary to address
them in light of its favorable ruling on the juror unanimity issue. Id. at *1 n.2 and n.4.
Ambrose then filed this petition for a writ of certiorari pursuant to 48 U.S.C.
1613 and Third Circuit LAR 112.2.1 We granted the writ by an order dated May 29,
2009. The order reads as follows:
The foregoing petition for a writ of certiorari is granted
limited to the following questions: (1) whether petitioner was
entitled to relief on the merits of his arguments based on the
filing of multiple criminal informations against him and that
his conviction on Count Two (weapon possession) was not
supported by sufficient evidence; (2) whether relief on either
of those arguments would have entitled petitioner to a remand
with an instruction to enter a judgment of acquittal instead of
a remand for a new trial, see, e.g., Burks v. United States, 437
U.S. 1, 15-18 (1978); McMullen v. Tennis, 562 F.3d 231, 237
(3d Cir. 2009); Government of the Virgin Islands v. Joseph,
765 F.2d 394, 396, 399 (3d Cir. 1985); and (3) whether the
Virgin Islands Supreme Court erred in declining to address
those arguments. In addition to these questions, the parties
are directed to brief the issue of whether this Court has
jurisdiction pursuant to 48 U.S.C. 1613 given the Virgin
Islands Supreme Courts decision to remand this matter for
retrial.
48 U.S.C. 1613 provides as follows:
1

Third Circuit LAR 112.2 explains how to petition for a writ of certiorari.
3

The relations between the courts established by the

Constitution or laws of the United States and the courts
established by local law with respect to appeals, certiorari,
removal of causes, the issuance of writs of habeas corpus, and
other matters or proceedings shall be governed by the laws of
the United States pertaining to the relations between the
courts of the United States, including the Supreme Court of
the United States, and the courts of the several States in such
matters and proceedings: Provided, That for the first fifteen
years following the establishment of the appellate court
authorized by section 1611(a) of this title, 2 the United States
Court of Appeals for the Third Circuit shall have jurisdiction
to review by writ of certiorari all final decisions of the highest
court of the Virgin Islands from which a decision could be
had. The Judicial Council of the Third Circuit shall submit
reports to the Committee on Energy and Natural Resources of
the Senate and the Committee on Natural Resources of the
House of Representatives at intervals of five years following
the establishment of such appellate court as to whether it has
developed sufficient institutional traditions to justify direct
review by the Supreme Court of the United States from all
such final decisions. The United States Court of Appeals for
the Third Circuit shall have jurisdiction to promulgate rules
necessary to carry out the provisions of this section.
(emphasis added).
For our purposes, the emphasized portion of the text of 1613 is crucial because it
limits our jurisdiction to reviewing final decisions of the highest court of the Virgin
Islands from which a decision could be had. 48 U.S.C. 1613. The Supreme Courts
order here is not a final decision because it remands Ambroses case to the Superior
Court for further proceedings, i.e., a retrial on Counts 1 and 2. The remand for a new

Which provides: The judicial power of the Virgin Islands shall be vested in a court of
record designated the District Court of the Virgin Islands established by Congress, and
in such appellate court and lower local courts as may have been or may hereafter be
established by local law. 48 U.S.C. 1611(a).
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trial creates a particularly serious problem when considering finality. As we have just
noted, the Supreme Court reversed both convictions and remanded for a new trial, and
therefore concluded that it did not have to address the other issues Ambrose raised in his
appeal. The Courts failure to address the remaining issues is problematic given the
remand for a new trial.
The remedy for most kinds of trial error is a new trial, not a judgment of acquittal,
because the Double Jeopardy Clause usually does not bar a new trial when a conviction is
set aside on appeal. See, e.g., McMullen v. Tennis, 562 F.3d 231, 237 (3d Cir. 2009).
This principle clearly applies to Ambroses arguments regarding juror unanimity, see
Evans v. Court of Common Pleas, 959 F.2d 1227, 1236 (3d Cir. 1992) (double jeopardy
clause does not bar retrial when jury fails to reach unanimous verdict), and the
Confrontation Clause. See United States v. Chandler, 326 F.3d 210, 225 (3d Cir. 2003)
(remanding for a new trial following Confrontation Clause violation). This principle,
however, does not apply when an appellate court sets aside a verdict because it is not
supported by sufficient evidence. See McMullen, 562 F.3d at 237 (discussing, inter alia,
Burks v. United States, 437 U.S. 1 (1978)). There, the proper remedy is a remand with an
instruction to enter a judgment of acquittal. See id. This follows from the fact that an
appellate ruling that the evidence submitted to the jury was insufficient to convict is the
functional equivalent of an acquittal for double jeopardy purposes; thus, no retrial can
occur without violating the prohibition against Double Jeopardy. Id.
As noted, in his appeal to the Supreme Court, Ambrose claimed that there was
insufficient evidence to sustain his weapon possession conviction, but the claim was not
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addressed because of the Courts favorable ruling on his challenge to the jurys
unanimity. However, remanding for a new trial under the circumstances here was
inconsistent with the protection against Double Jeopardy because Ambrose was thereby
exposed to a retrial even though the original guilty verdict may not have been supported
by evidence that was sufficient to establish his guilt beyond a reasonable doubt. If he
could have established such a failure of proof, he would have been entitled to a judgment
of acquittal, not a retrial which would have allowed the government the proverbial
second bite of the apple. See, e.g., United States v. Dotson, 871 F.2d 1318, 1324 (6th
Cir. 1989) (While we have determined that the jury charge on these counts was
inadequate, we find it necessary to consider the sufficiency-of-the-evidence issue in order
to determine the proper scope of our remand. If the evidence at trial was insufficient to
support [defendants] conviction . . . then we would be compelled to remand for an entry
of judgment of acquittal. If, on the other hand, the evidence was sufficient . . . we would
merely remand for further consistent proceedings. The sufficiency-of-the-evidence issue
is therefore necessary for the resolution of our case.) (citations omitted).
The Courts failure to address Ambroses claim of a variance between the
informations and the verdict creates a similar problem. On two occasions, we have
remanded for the entry of a judgment of acquittal instead of a new trial after granting
relief on variance arguments similar to Ambroses. See Government of the Virgin Islands
v. Joseph, 765 F.2d 394, 399 (3d Cir. 1985); Government of the Virgin Islands v. Aquino,
378 F.2d 540, 554 (3d Cir. 1967). Once again, the Supreme Courts remand for a new
trial is in potential violation of Ambroses Double Jeopardy rights.
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We are therefore faced with reviewing an order of the Virgin Islands Supreme
Court that is not final on its face as it remands for further proceedings. Yet, which may
be final insofar as it allows Ambrose to be subjected to a retrial that would violate his
Fifth Amendment guarantee against Double Jeopardy from which he would have no
appeal because any appeal would necessarily come after the very trial that would violate
his Fifth Amendment protection. It is within this procedural context that we must
determine if the Supreme Courts order remanding for a new trial is a final decision
over which we have certiorari review.
To further complicate things, the order granting the writ of certiorari specifically
directed the parties to brief the issue of whether this Court has jurisdiction pursuant to
48 U.S.C. 1613 given the Virgin Islands Supreme Courts decision to remand this
matter for retrial. However, for reasons known only to defense counsel and the
government, neither Ambrose nor the Government of the Virgin Islands has bothered to
address that all important issue. 3 Rather, both counsel completely ignored that portion of
our order. Instead, they simply pasted boilerplate into their briefs stating that we have
jurisdiction pursuant to 48 U.S.C. 1613 and Third Circuit LAR 112.2.
Nevertheless, we have a special obligation to satisfy ourselves of our own
jurisdiction even if the parties agree that we have jurisdiction. In re Seven Fields
Development Corp., 505 F.3d 237, 244 n.4 (3d Cir. 2007) (citation, internal quotation

The parties also did not bother to brief the issue of whether the Supreme Court of the
Virgin Islands erred in declining to address the first two issues upon which the writ was
granted.
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marks and brackets omitted).

Here, we cannot conclude that the order of the Supreme Court is final because it
contemplates additional proceedings on remand to the trial court. Accordingly, we find
that the writ of certiorari was improvidently granted and will dismiss the writ of lack of
jurisdiction.

McKEE, Chief Judge, concurring.

Because we must dismiss the writ of certiorari as improvidently granted, the order
of the Supreme Court of the Virgin Islands remains in place. See Alvarez v. Smith,
U.S. , 130 S.Ct. 576, 584 (2009) (Stevens, J., concurring in part and dissenting in part).
However, as explained, that order, remanding for a new trial on Counts 1 and 2,
implicates Ambroses important constitutional right under the Double Jeopardy Clause
not to again stand trial on charges for which he contends he is entitled to judgments of
acquittal. Therefore, in order to avoid a violation of that important right, I strongly
suggest that the Supreme Court of the Virgin Islands vacate sua sponte its December 18,
2008 remand order, reopen Ambroses appeal and address his arguments that he is
entitled to judgments of acquittal on Counts 1 and 2. That is the only way to rescue this
appeal from the procedural limbo that could otherwise result as any further proceeding in
the trial court to resolve the questions left unanswered by the Supreme Court would pose
a serious conflict with the Double Jeopardy Clause if either of his two unanswered
claims is determined to have merit.